92 Decision Citation: BVA 92-10472
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
(Sitting in Roanoke, Virginia)
DOCKET NO. 91-43 083 ) DATE
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THE ISSUES
Entitlement to an increased rating for bilateral suppurative
otitis media with perforations of the eardrums and residuals
of a left tympanoplasty.
Entitlement to an increased (compensable) evaluation for
recurrent sinusitis with headaches.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. M. Yonemoto, Counsel
INTRODUCTION
This matter came before the Board on appeal from rating
decisions of February 1990 and March 1991 from the Roanoke,
Virginia, Regional Office (hereinafter RO). The veteran had
active service from August 1966 to May 1968. The notice of
disagreement was received on May 16, 1990. The statement of
the case was issued on June 4, 1990. The substantive appeal
was received on July 18, 1990. The veteran presented
testimony before a traveling section of the Board of
Veterans' Appeals in April 1991. The case was received by
the Board, and the appeal was docketed in September 1991.
The case is now ready for appellate review.
This appeal was initially completed by the Board section on
December 1, 1991. In its deliberations, the Board applied
the law then apparently in effect. This included the
provisions of Rowe v. Derwinski, U.S. Vet. App. No. 90-1326
(Nov. 27, 1991). Subsequently, the United States Court of
Veterans Appeals, on reconsideration, vacated this decision
in a January 3, 1992, memorandum decision by Chief Judge
Nebeker. The Court has clearly held that its decisions are
binding upon the Board from the date on which they are
issued. Tobler v. Derwinski, U.S. Vet App. No. 91-1366
(Dec. 6, 1991) (vacating, on reconsideration, the Court's
decision of October 28, 1991). Therefore, the January 3,
1992 decision to vacate Rowe has the effect of returning the
law to the state which existed prior to the issuance of the
November 27, 1991 decision. Accordingly, this appeal was
removed from administrative case processing and returned to
the Board section for review in light of Chief Judge
Nebeker's January 3, 1992, decision.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended, in substance, by and on behalf of the
veteran that he has had recurrent ear infections and has had
continuous treatment for his service-connected ear and sinus
disorders. It is maintained that his service-connected
otitis media is manifested by pain.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
supports the claims for increased ratings for bilateral
suppurative otitis media with perforations of the eardrums
and residuals of a left tympanoplasty, and for recurrent
sinusitis with headaches.
FINDINGS OF FACT
1. The service-connected bilateral otitis media with
perforation of the eardrums and residuals of a left
tympanoplasty is currently active.
2. The service-connected recurrent sinusitis, principally
manifested by infrequent headaches, is moderately disabling.
CONCLUSIONS OF LAW
1. The schedular criteria for the assignment of a 10
percent evaluation for bilateral suppurative otitis media
with perforation of the eardrums and residuals of a left
tympanoplasty have been met. 38 U.S.C. §§ 1110, 5107(a); 38
C.F.R. Part 4, Code 6200.
2. The schedular criteria for the assignment of a 10
percent evaluation for recurrent sinusitis with headaches
have been met. 38 U.S.C. §§ 1155, 5107(a); 38 C.F.R. Part
4, Code 6510.
(Note: Numerous sections of title 38, United States Code
were renumbered by Public Law 102-40, effective May 7,
1991. The section numbers of the United States Code cited
herein are the numbers in effect after that date.)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we find that the veteran's claims are well
grounded within the meaning of 38 U.S.C. § 5107(a);
effective on and after September 1, 1989. We are satisfied
that all relevant facts have been properly developed and
that no useful purpose would be served by remanding this
case to the RO. See Murphy v. Derwinski, U.S. Vet. App. No.
90-107 (November 8, 1990).
In the present case, the veteran seeks a compensable
evaluation for his service-connected bilateral suppurative
otitis media with bilateral perforation of the eardrums and
residuals of a left tympanoplasty. It is noted that those
disabilities have been assigned a noncompensable evaluation
under the provisions of Diagnostic Code 6200 of the Schedule
for Rating Disabilities 38 C.F.R. Part 4. Disability
evaluations are determined by the application of a schedule
of ratings which is based on average impairment of earning
capacity. 38 U.S.C. § 1155. Chronic, suppurative otitis
media warrants a 10 percent evaluation during the
continuance of the suppurative process. This evaluation is
combined with the evaluation for any associated loss of
hearing. 38 C.F.R. Part 4, Code 6200. Perforation of the
tympanic membrane warrants a noncompensable evaluation.
38 C.F.R. Part 4, Code 6211.
The records in the veteran's claims folder include
statements from a private physician as well as Department
of Veterans Affairs (VA) medical reports. It is essential
in the evaluation of a disability that the disability be
viewed in relation to its history. 38 C.F.R. §§ 4.41.
A review of the VA progress notes discloses that the veteran
sought treatment for persistent drainage and pain of the
ears in late 1989. An examination of his ears in November
1989 showed mucopurulent drainage of the right ear. It was
reported in December 1989 that the veteran had intermittent
drainage of the right ear. In April 1990, he again
complained of pain and drainage of the right ear.
Examination of the right ear showed erythema and scanty
drainage. He still complained of intermittent drainage from
the right ear with some pain in July 1990. The veteran
sought treatment for his ear problems in October 1990. In a
letter of April 1991, D. W. Lappin, M.D., reported that he
treated the veteran with antibiotics for a right ear
infection about a week before and recommended that the
veteran continue the use on a daily basis of ear
medication. In view of the evidentiary picture in its
entirety, we conclude that the veteran has active
suppurative otitis media of the right ear. It is,
therefore, our judgment that the assignment of a 10 percent
evaluation for the service-connected bilateral suppurative
otitis media with perforations of the eardrums and residuals
of a left tympanoplasty is warranted. 38 U.S.C. § 1155 ; 38
C.F.R. § 4.41, Part 4, Code 6200.
The veteran also argues that he should be entitled to a
compensable evaluation for his service-connected recurrent
sinusitis with headaches. In this regard, it should be
noted that those disabilities are rated under Diagnostic
Code 6510. A noncompensable evaluation is warranted for
chronic sinusitis with only X-ray manifestations and mild or
occasional symptoms. A 10 percent evaluation requires
moderate chronic sinusitis manifested by a discharge,
crusting, or scabbing and infrequent headaches. 38 C.F.R.
Part 4, Code 6510.
In late January 1990, the veteran complained of sinus
headaches at a VA ear, nose and throat clinic. It was
reported in October 1990 that X-ray series 11 months before
disclosed right maxillary sinusitis. The impression was
right facial pain because of right maxillary sinusitis.
After reviewing the medical evidence on file and the hearing
testimony in April 1991 in connection with the applicable
law and regulations, we conclude that the service-connected
recurrent sinusitis is moderately disabling. Hence, it is
our judgment that the preponderance of the evidence supports
the assignment of a 10 percent evaluation for his
service-connected recurrent sinusitis with headaches. 38
U.S.C. § 1155; 38 C.F.R. § Part 4, Code 6510.
ORDER
A 10 percent evaluation for bilateral suppurative otitis
media with perforation of the eardrums and residuals of a
left tympanoplasty is granted, subject to the regulations
governing the disbursement of monetary benefits. A
10 percent evaluation for recurrent sinusitis is granted
subject to the regulations governing the disbursement of
monetary benefits.
(NOTE: The section numbers of title 38, United States Code,
were changed in 1991. The new section numbers are given
above, followed, in parentheses, by "formerly §" and the old
section numbers in effect prior to the 1991 revisions.)
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
ALBERT D. TUTERA C. W. HUMPHREYS, JR., M.D.
C. W.. SYMANSKI
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266
(formerly § 4066), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988 (see sec. 402 of the Veterans'
Judicial Review Act (Pub. L. 100-687)). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.